a nos. 01-30065

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 01-30065Plaintiff-Appellee, 01-30110

01-30111v.01-30112STEVEN G. HUGGINS; VICKI JO

D.C. No.JENSEN; DAHCOTA WHIP HAGEN;CR-99-60012-HORHONDA TAYLOR,

Defendants-Appellants. OPINIONAppeal from the United States District Court

for the District of OregonMichael R. Hogan, Chief District Judge, Presiding

Argued and SubmittedMarch 7, 2002—Portland, Oregon

Filed August 6, 2002

Before: Betty B. Fletcher, Diarmuid F. O’Scannlain, andMarsha S. Berzon, Circuit Judges.

Opinion by Judge O’Scannlain;Concurrence by Judge B. Fletcher

11181

COUNSEL

Shaun S. McCrea, McCrea, P.C., Eugene, Oregon, argued thecause and filed briefs for appellant Huggins.

Marc A. Spence, Spence & Sabitt, LLP, Eugene, Oregon,filed a brief for appellant Jensen.

Craig E. Weinerman, Assistant Federal Public Defender,Eugene, Oregon, argued the cause and filed briefs for appel-lant Hagen.

David M. Michael, Law Offices of David M. Michael, SanFrancisco, California, filed a brief for appellant Taylor.

Jeffrey J. Kent, Assistant United States Attorney, Eugene,Oregon, argued the cause for appellee United States of Amer-ica. Michael W. Mosman, United States Attorney, was on thebrief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the Fourth Amendment compelsthe suppression of the results of a series of searches set inmotion by an application to scan a private residence and itsoutbuildings with a thermal imaging device.

11185UNITED STATES v. HUGGINS

I

In October 1998, DEA special agent Ronald Wright andIRS special agent Kurt Charlton interviewed a prisoner incar-cerated on federal drug charges, seeking information on drugtrafficking activity in southern Oregon. The informant gavethem a tip that an individual variously known as Galen Max-well, Courtney Maxwell, and Steve Huggins (“Huggins”) wasinvolved in producing and distributing marijuana and LSD.The informant added that he had last spoken to Huggins threeyears before, that Huggins had then lived in the Eugene areabut might have since moved to Ashland, and that at the timeHuggins had had a girlfriend named “Rhonda.”

Wright proceeded to corroborate some of the details of thetip. He established that a Steve Huggins had listed 199Mowetza Drive, Ashland, Oregon, as his address on a still-current vehicle registration and on an Oregon driver’s licensethat had expired six months before; that Huggins had previ-ously listed on his driver’s license an address in Veneta (nearEugene); that a Rhonda Taylor owned the Mowetza Driveproperty and maintained a personal address, a businessaddress, and telephone service there; and that Rhonda Tayloralso used the names Rhonda Jewell and Rhonda Huggins. Acheck of DEA files indicated that a Rhonda Jensen, alsoknown as Rhonda Jewell, who had the same date of birth asRhonda Taylor, had been arrested in Mexico in 1983 with 200kilograms of marijuana.

Wright drove by the Mowetza Drive property and deter-mined that it was a five-acre parcel with a single-story ranchhouse, two barns, and a riding ring. He also obtained the elec-trical records for that property and the two neighboring prop-erties from Pacific Power and Light. Those records indicatedthat the combined electricity bills for the two meters in ser-vice at 199 Mowetza Drive had averaged $455.87 per month(with total power use averaging 7784 kWh per month) overthe thirteen months that the electric service had been in

11186 UNITED STATES v. HUGGINS

Rhonda Taylor’s name. By comparison, electric consumptionat the adjacent properties averaged 1583 and 1377 kWh permonth, respectively, and their bills averaged $92.83 and$71.84. During the thirteen months before Rhonda Jensentook over the electric service at 199 Mowetza Drive, the com-bined bills for that property had averaged $133.69, with aver-age usage of 2309 kWh/month.

Wright swore out an affidavit before a U.S. magistratejudge, reciting the above information about the tip (althoughwith no details about the identity or background of the tipster,1

and with the caveat that the tipster’s “reliability” was “untest-ed”); the corroborated details of Huggins’s move from Venetato Ashland and of his association with Rhonda Taylor; theinformation about Taylor’s past arrest; and the electricity con-sumption data. Wright stated that based on his past experi-ence, he thought this information indicated that Huggins wasengaged in marijuana production. In particular, he stated that“large indoor marijuana cultivation operations typically con-sume large quantities of electricity primarily to power large1,000 watt lamps associated with the grow operation.” Hetherefore requested a warrant to examine 199 Mowetza Driveusing a thermal imaging device,2 as well as to collect dis-carded trash from the property.

The magistrate judge issued the warrant, and the search wasconducted overnight by Sgt. Ken Hauge of the OregonNational Guard, a trained operator of thermal imaging equip-

1The government later inadvertently revealed the tipster’s identity whenit turned over an inadequately redacted document. The defendants subse-quently obtained the details of the informant’s incarceration and pleaagreement.

2“Thermal imagers detect infrared radiation, which virtually all objectsemit but which is not visible to the naked eye. The imager converts radia-tion into images based on relative warmth — black is cool, white is hot,shades of gray connote relative differences; in that respect, it operatessomewhat like a video camera showing heat images.” Kyllo v. UnitedStates, 121 S. Ct. 2038, 2041 (2001).


ment. As Wright later reported, the scan indicated that thesouth side of the eastern barn “showed an excessive heat-losssignature” that was “greater than the heat loss on the northside of the same barn” and that “continued after 1:00 a.m.,which is a time during which the solar heat loading that wouldhave occurred during daylight hours would have dissipated.”The other barn also showed an excessive heat-loss signatureon one wall. The heat-loss signatures, Hauge concluded, were“consistent with the signatures he ha[d] seen from other ther-mal images of structures from which indoor marijuana‘grows’ were subsequently seized.”

Meanwhile, Charlton investigated Huggins’s and Taylor’sfinances. Taylor had bought property in Veneta in 1993, soldthat property in 1996, and bought the Mowetza Drive propertythe same month. Both properties were subject to mortgages.Huggins had never filed a federal income tax return; Taylorhad filed returns, but they showed income insufficient or onlybarely sufficient to cover her mortgage interest payments, andthey gave no indication of where she got the money for thetwo down payments.

Wright swore out a second affidavit, repeating the aver-ments of the first affidavit and adding the details of the ther-mal imaging scan and the review of Huggins and Taylor’sfinances. He requested a warrant to search 199 MowetzaDrive for evidence of marijuana cultivation and relatedoffenses. The magistrate judge granted the warrant.

The search turned up 474 growing marijuana plants in theeastern barn, plus assorted growing paraphernalia, some driedmarijuana, documents, and cash. It did not, however, turn upany drying equipment. Among the documents seized weresome relating to a property at 16000 North Applegate Roadin Ruch. Specifically, the agents found a bill made out toRhonda Taylor for water testing at the North Applegate Roadproperty; receipts of payments to a title company, which borethe name D.W. Hagen; and a power bill for the North Apple-


gate Road property addressed to Whip Hagen. They alsofound an envelope labeled “receipts 98 Applegate,” whichcontained a number of receipts from a hardware store for sev-eral items, including a water heater timer, temperature gauge,and humidity gauge, that can be used in operating an indoormarijuana grow. In addition, they seized a “Property Inspec-tion Sheet” relating to a property at 15333 Highway 238 inGrants Pass. The document listed Steve and Rhonda Hugginsas tenants.

Further investigation, including questioning of Taylor at thescene of the search, verified that Dahcota Whip Hagen wasTaylor’s son, that he owned the North Applegate Road prop-erty, and that there had been a number of phone calls fromTaylor’s phone line to Hagen’s in July and August. In addi-tion, an Oregon state trooper relayed an anonymous infor-mant’s tip that he had seen a marijuana grow at 16000 NorthApplegate Road (and had provided a leaf that he said wasfrom that grow), and a contractor working across the road saidthat he had seen Whip Hagen’s “parents” going in and out ofHagen’s property over the previous week. Finally, the agentsdiscovered that the electrical service at the Highway 238property was in Steve Huggins’s name and that Huggins’selectricity usage was higher than the previous tenant’s hadbeen.

Based on the foregoing information, a Medford police offi-cer working with the DEA and IRS agents sought andobtained a state search warrant for the North Applegate Roadand Highway 238 properties. Both properties were searchedthe day after the Mowetza Drive search. The North ApplegateRoad property was found to contain a marijuana grow withover 100 marijuana plants, and the Highway 238 propertyyielded over 300 marijuana plants and some bagged mari-juana.

Hagen was arrested at the North Applegate Road property,and Vicki Jensen, who is Taylor’s sister, was arrested at the


Highway 238 property. Jensen told the authorities that Hug-gins and Taylor had set her up as caretaker of the Highway238 property.

All four defendants3 were indicted and charged with mari-juana possession, cultivation, and distribution. All exceptTaylor were also charged with conspiracy to commit moneylaundering. The defendants filed various motions (with vari-ous cross-joinders) to suppress the evidence from the series ofsearches. In particular, the defendants challenged the affida-vits’ failure to describe the Mowetza Drive property and toprovide an adequate basis for evaluating the electricity usage;the failure to provide information about the tipster’s plea bar-gain and motive to lie; and the efficacy of the thermal imager,Hauge’s operation of the imager during the scan of 199Mowetza, and Wright’s report of the scan results.

The district judge held a limited Franks hearing to examinewhether the affiants had made material omissions or misstate-ments in obtaining the several search warrants. After testi-mony from both sides, including expert testimony on theoperation and accuracy of the thermal imaging device, the dis-trict court denied the motions to suppress. The court con-cluded that “probable cause exist[ed,] but not by a widemargin,” and that the defendants had not carried their burdenof establishing dishonesty or recklessness in the affidavit.

All four defendants subsequently reached conditional pleaagreements under which they reserved their right to challengethe constitutionality of the various searches. They timely filedthe instant appeals, which we consolidated.

3Vicki Jensen’s daughter, Selicia Sol Jensen, was found with her motherat the Highway 238 property and was also indicted, but the governmentlater voluntarily dismissed the charges.


II

[1] The Supreme Court recently determined that the use ofthermal imaging equipment or other devices “not in generalpublic use” to discern “details of the home that would previ-ously have been unknowable without physical intrusion” is asearch, unreasonable under the Fourth Amendment unlesssupported by probable cause and, presumptively, authorizedby a warrant. Kyllo v. United States, 121 S. Ct. 2038, 2046(2001). In this case, Wright obtained a facially valid warrant4

before performing the scan, so we initially ask only whetherhe conducted the search in good faith reliance on the magis-trate judge’s determination that probable cause existed. The“good faith exception” applies, and suppression is unwar-ranted, unless the searching officers’ reliance on the warrantwas not “objectively reasonable,” United States v. Leon, 468U.S. 897, 922 (1984), the magistrate judge “wholly aban-doned his judicial role,” id. at 923, or the officers acted in badfaith by misleading the magistrate judge, id. (citing Franks v.Delaware, 438 U.S. 154 (1978)). In evaluating whether theofficers could reasonably rely on the magistrate judge’s prob-able cause determination, we are mindful that although a ther-mal imaging search is less intrusive than a physical search,the degree of probable cause required is not diminishedmerely by virtue of that fact.5

4Facial invalidity most commonly refers to a warrant’s unconstitutionaloverbreadth. United States v. Towne, 997 F.2d 537, 549 (9th Cir. 1993)(holding that a warrant is “so facially deficient that it precludes reasonablereliance” if it “ ‘fails to offer sufficiently detailed instruction’ ” to the offi-cers charged with executing it “ ‘and instead leaves them guessing as totheir task’ ” (quoting Ortiz v. Van Auken, 887 F.2d 1366, 1370 (9th Cir.1989))); see also United States v. Leon, 468 U.S. 897, 923 (1984). In thiscase, the warrant’s facial validity is not seriously in question, as the war-rant “particularly describ[ed] the place to be searched, and the . . . thingsto be seized.” U.S. Const. amend. IV. It identified the Mowetza Driveproperty with specificity, and it contained none of the “catchall phrase[s]”that, we have held, render warrants facially overbroad. United States v.Clark, 31 F.3d 831, 836 (9th Cir. 1994) (citing cases).

5So long as thermal imagers are “not in general public use,” employingthose devices to read the heat emissions from a property in which the tar-


[2] A comparison with the warrant we considered in UnitedStates v. Clark, 31 F.3d 831 (9th Cir. 1994), is instructive. Inthat case, we held that an anonymous tip, which did not spe-cifically link Clark to criminal activity and which was onlypartially corroborated, and an assertion that the target’s elec-tricity usage was “high,” which offered the issuing magistrateno basis for comparison, were together inadequate to supporta finding of probable cause. Id. at 835. However, we went onto hold that the good faith exception nonetheless applied,because “[t]here was enough information so that objectivelyreasonable officers were entitled to rely on the magistratejudge’s determination.” Id.

[3] In this case, Wright’s affidavit did not present the cur-rent power consumption data for the target property in isola-tion; it also offered comparative data, both from neighboringproperties during the same period and from the MowetzaDrive property during the prior owner’s residency. The defen-dants argue that the affidavit should have spelled out in moredetail the relative sizes of the neighboring properties and anydifferences in the way the previous owners used the property(such as not using the barn for livestock). We agree that such

get has a reasonable expectation of privacy will constitute a search withinthe meaning of the Fourth Amendment. Kyllo, 121 S. Ct. at 2043. And “[a]search is a search,” Arizona v. Hicks, 480 U.S. 321, 325 (1987), meaningthat whenever an intrusion upon a legitimate, undiminished privacy inter-est — such as “the Fourth Amendment sanctity of the home,” Kyllo, 121S. Ct. at 2045 — is substantial enough to trigger the probable causerequirement, the substance of that requirement generally does not wax andwane with the degree of intrusiveness beyond the threshold level neces-sary to deem it a search. “The Fourth Amendment’s protection of thehome has never been tied to measurement of the quality or quantity ofinformation obtained.” Id. To be sure, we recognize that probable causeis a protean concept fundamentally dependent on all the individual factsof each case. See, e.g., Illinois v. Gates, 462 U.S. 213, 238 (1983). Wenote only that under otherwise identical circumstances, the quantum ofprobable cause necessary to justify a thermal imaging search does not dif-fer from that necessary to justify a physical search.


additional comparative data — especially if it had shown theusage from neighboring properties with barns — would haveaided the magistrate judge in his determination. However, wedo not think that the magistrate judge’s decision to issue thewarrant without the benefit of such information evinces objec-tive unreasonableness, particularly as the affidavit did providea breakdown between usage from the residential meter andthe barn meter, as well as some information on the size of thebuildings on the 199 Mowetza property. We conclude thatthese additional details reduced the dangers of an apples-and-oranges comparison sufficiently to distinguish this affidavitfrom that in Clark, at least on its face,6 and that an officerwith “a reasonable knowledge of what the law prohibits,”Leon, 468 U.S. at 919 n.20, could therefore give credence tothe magistrate judge’s finding of probable cause even in lightof our Clark precedent. See United States v. Fowlie, 24 F.3d1059, 1067 (9th Cir. 1994) (distinguishing a warrant affidavitfrom a less detailed affidavit offered in an earlier, factuallysimilar case, and holding that reliance on the latter affidavitwas objectively reasonable).

Additionally, the tip that Wright recounted was more spe-cific and was supported by more corroborating detail than wasthe bare assertion we confronted in Clark. Although the infor-mant did not directly implicate Huggins in ongoing marijuanaproduction, as the information he possessed was several yearsold, the corroboration of other details of the tip (such as Hug-gins’s relationship with Taylor and his move from Veneta toAshland) lent credence to the tipster’s assertion that Hugginshad previously been involved in growing marijuana — and

6Evidence demonstrating that the affidavit had failed to state, for exam-ple, that the neighboring houses were much smaller than Taylor’s mightwell have made out a material omission that would preclude reliance onthe good faith exception. See Leon, 468 U.S. at 922 (citing Franks). Thedefendants have made no such factual showing with respect to the electric-ity usage comparisons. (We address their other Franks claims in moredetail below.)


that he had done so while involved with Taylor and living onproperty she owned.

[4] Finally, Huggins’s still-current vehicle registration gavereason to believe he might still be found at the electricity-hungry Mowetza Drive property. (Although the Oregon driv-er’s license on which he listed 199 Mowetza as his addresshad expired, that did not establish with any certainty that hehad moved elsewhere.) Thus, the magistrate judge had beforehim information suggesting that Huggins had previously beeninvolved in marijuana production while living on propertyowned by his girlfriend, that he and his girlfriend had movedtogether to a new location, and that their new home displayedpatterns of electricity consumption consistent with an indoormarijuana grow.

[5] In light of Wright’s recitation of all of these facts, wecannot say that his affidavit was “so lacking in indicia ofprobable cause as to render official belief in its existenceentirely unreasonable.” Leon, 468 U.S. at 923 (quoting Brownv. Illinois, 422 U.S. 590, 611 (1975) (Powell, J., concurringin part)) (internal quotation marks omitted). An objectivelyreasonable officer could rely on the magistrate judge’s deter-mination that Wright’s affidavit sufficed to make out probablecause to conduct the thermal imaging scan.

The defendants also argue that the good faith exception isinapplicable because, they contend, the officers misled theissuing magistrate. See id. (citing Franks). Specifically, theyassert that had the agents surveilled the Mowetza Drive prop-erty over a longer period, they would have discovered infor-mation — e.g., that the occupants kept horses and dogs, thatthe house was equipped with a heat pump for air conditioning,or that the occupants made “extensive use of power tools” —that could and would have provided an innocent explanationfor the comparatively high usage, and that the failure toundertake such extended observation was reckless. However,even assuming without deciding that such a “duty of further


inquiry” may exist in some cases and that, as the defendantsargue, a more thorough surveillance of Mowetza Drive wouldhave uncovered information that would have undermined afinding of probable cause,7 we think that the agents’ decisionnot to conduct prolonged surveillance certainly was not madewith the degree of recklessness necessary to warrant suppres-sion. See United States v. Young Buffalo, 591 F.2d 506, 510(9th Cir. 1979) (“Even if we were to find that the informationpossessed by [the attesting agent] was enough to create a dutyof further inquiry, these assertions at best raise the possibilityof negligence on his part . . . . ‘Allegations of negligence orinnocent mistake are insufficient’ to [justify a hearing].”(quoting Franks, 438 U.S. at 171) (alteration omitted)).

The defendants also contend that the failure to disclose thatthe informant was in custody and trying to secure a plea bar-gain was a material omission that justifies suppression. How-ever, the informant was detained on charges that did not bearon his credibility, and even if Wright had known about theplea bargain,8 the informant’s desire for favorable treatmentdoes not seem material in light of the partial corroboration ofhis statement. See United States v. Meling, 47 F.3d 1546,1555 (9th Cir. 1995) (holding immaterial “the fact that aninformant ha[d] an ulterior or impure motive in coming for-ward”). We do not think that the affidavit’s failure to statethat the informant offered his information in exchange forleniency evinces bad faith or demands the suppression of theevidence. We also note that the affidavit did state, forth-rightly, that the reliability of the informant was untested.

7“The government need not include all of the information in its posses-sion to obtain a search warrant . . . . The omission of facts rises to the levelof misrepresentation only if the omitted facts ‘cast doubt on the existenceof probable cause.’ ” United States v. Johns, 948 F.2d 599, 606-07 (9thCir. 1991) (quoting United States v. Dennis, 625 F.2d 782, 791 (8th Cir.1980)).

8The district court stated that “the record [was] uncontradicted” thatWright had no knowledge of the plea bargain.


Finally, there is no evidence that the magistrate judge actedwith partiality or in any way compromised the “neutrality anddetachment demanded of a judicial officer when presentedwith a warrant application.” Leon, 468 U.S. at 914 (quotingLo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27 (1979))(internal quotation marks omitted).

[6] For the foregoing reasons, we conclude that the govern-ment conducted the thermal imaging search in good faith reli-ance on the facially valid warrant, and that the FourthAmendment therefore does not require the suppression of theimages recovered during that search. Therefore, we need notdecide whether the magistrate judge’s probable cause deter-mination was clearly erroneous, and we express no opinion onthat question. See id. at 924-25 (indicating that reviewingcourts may, in their discretion, inquire into probable causebefore good faith or vice versa); accord, e.g., United States v.Cavazos, 288 F.3d 706, 709 (5th Cir. 2002); United States v.Lindsey, 284 F.3d 874, 877-78 (8th Cir. 2002); United Statesv. Owens, 167 F.3d 739, 744-45 (1st Cir. 1999); United Statesv. Chaar, 137 F.3d 359, 363 (6th Cir. 1998); United States v.Cancelmo, 64 F.3d 804, 807 (2d Cir. 1995); United States v.Clutchette, 24 F.3d 577, 581 n.4 (4th Cir. 1994); UnitedStates v. McKneely, 6 F.3d 1447, 1453-54 (10th Cir. 1993).“Application of the good faith exception is particularly appro-priate in the instant case because the legal question of whetherprobable cause existed is a close one,” while the objectivereasonableness of the officers’ reliance on the warrant is morestraightforward. Cancelmo, 64 F.3d at 808.

III

Next, we must examine whether probable cause existed tojustify the physical search of 199 Mowetza Drive. In light ofour conclusion that the fruits of the thermal imaging searchwere admissible, we consider the second warrant affidavit inits entirety, including the report of the scan results.


A

The thermal imaging data served to remove some innocentexplanations for the comparatively high electricity usage at199 Mowetza. Accordingly, the second warrant was muchless dependent on establishing Huggins’s connection to theproperty; even if he no longer lived there, the electricity con-sumption data, the thermal imaging scan, Taylor’s recentassociation with Huggins, the partially corroborated tip thatHuggins was involved in marijuana cultivation, and herapparent ability to purchase Mowetza Drive on only a smallreported income9 were all factors supporting the notion thatTaylor herself might be maintaining a marijuana grow on thepremises, with or without Huggins’s involvement.10

9To be sure, Taylor could conceivably live quite well without payingincome tax — for example, if her entire income were from gifts, bequests,and tax-free interest, see I.R.C. §§ 102(a), 103(a) (1994), or if she sub-sisted on existing savings (albeit savings that generated no taxable inter-est). And the difference between the $135,000 she realized on the sale ofher previous home and the $170,000 down payment on 199 Mowetza wasnot jaw-dropping. However, in 1997, she reported an adjusted grossincome of about $12,100, and her mortgage interest payments alonetotaled $11,445. The presence of significant assets together with theabsence of apparent means of support may at least plausibly be includedin the probable cause determination. See, e.g., United States v. Robinson,62 F.3d 1325, 1331 (11th Cir. 1995).

10The government urges that Taylor’s past arrest for marijuana traffick-ing be considered as additional evidence in support of this conclusion. Itis true that some of our cases indicate that relevant previous arrests maybe considered in a probable cause analysis even if no conviction ensued.See United States v. U.S. Currency, $83,310.78, 851 F.2d 1231, 1236 (9thCir. 1988) (considering a 1973 conviction, a 1983 conviction, and a 1984arrest); see also Greenstreet v. County of San Bernardino, 41 F.3d 1306,1309 (9th Cir. 1994) (“[T]he use of prior arrests and convictions can behelpful in establishing probable cause, especially where the previous arrestor conviction involves a crime of the same general nature as the one thewarrant is seeking to uncover . . . .” (emphasis added)). At least three othercircuits have held as much. United States v. Jakobetz, 955 F.2d 786, 803(2d Cir. 1992) (“[T]he magistrate surely appreciated the differencebetween arrest and conviction. Moreover, the fact that, in determining


In considering this issue, we are guided by pre-Kyllocaselaw discussing the weight that thermal imaging resultsbear in probable cause analysis.11 Several of our sister circuits

probable cause, a judicial officer may take into account a prior similararrest is not error.”); accord United States v. McSween, 53 F.3d 684, 686(5th Cir. 1995); United States v. Thomas, 913 F.2d 1111, 1116 (4th Cir.1990). Nonetheless, because there is adequate support for the probablecause finding without the fact of the prior arrest, and because in any eventthe age of that datum reduces its reliability, we do not consider it in ouranalysis.

11E.g., Robinson, 62 F.3d at 1331 (finding probable cause based oninfrared imaging results, the homeowner’s purchase of thirty high-pressuresodium lights, his comparatively high electricity consumption, and theapparently expensive house he owned despite having filed no state incometax returns); United States v. Ishmael, 48 F.3d 850, 857 (5th Cir. 1995)(finding probable cause based on high electricity consumption, a continu-ously running exhaust fan, phone calls to horticulture shops, and, “perhapsmost importantly,” thermal imaging results); United States v. Robertson,39 F.3d 891, 893-94 (8th Cir. 1994) (finding probable cause based oninfrared imaging results, foil-covered windows, and a credible anonymoustip allegedly based on the tipster’s personal knowledge); State v. Siegel,679 So. 2d 1201, 1205 (Fla. Dist. Ct. App. 1996) (finding probable causebased on thermal imaging results, comparatively high electricity consump-tion, two arrests for drug manufacturing many years before, and an infor-mant’s tip that was “short on detail but . . . substantially corroborated”);LaFollette v. Commonwealth, 915 S.W.2d 747, 750 (Ky. 1996) (findingprobable cause based on infrared imaging results buttressed by an anony-mous tip and stating that the thermal imaging results alone would havebeen sufficient to support probable cause); Garrettson v. State, 967 P.2d428, 431-32 (Nev. 1998) (finding probable cause based on thermal imag-ing results, “high power bills,” and an anonymous tip); State v. Norris, 47S.W.3d 457, 469-70 (Tenn. Crim. App. 2000) (finding no probable causewhere the affidavit offered only “conclusory statements” about the resultsof a thermal imaging scan and analysis of electricity records, plus evi-dence that the defendants’ windows were painted black and that they werearrested for growing marijuana six months before); see also United Statesv. Pinson, 24 F.3d 1056, 1057-59 (8th Cir. 1994) (upholding a searchbased on infrared imaging results, comparatively high electricity con-sumption, and the receipt of packages from a manufacturer of hydroponicgrowing equipment); United States v. Zimmer, 14 F.3d 286, 288 (6th Cir.1994) (stating, in dicta, that thermal imaging results, comparatively highelectric bills, and the smell of marijuana on a prior visit by a police officer“were enough to establish probable cause”).


and multiple other courts have noted that although thermalimaging does not reveal direct evidence of crime, it can serveas a means of corroborating direct but weak evidence of crim-inal activity — such as the informant’s tip that triggered theinvestigation in this case.12 Thermal imaging can also bolsterthe probative value of comparative electrical data by indicat-ing that whatever power-intensive activity is occurring on thepremises under surveillance is also one that generates signifi-cant heat; this information rules out some, albeit not all, inno-cent explanations for the target location’s relatively highpower bills.13 The thermal scan performed both functions inthis case: Sgt. Hauge’s expert interpretation of the scan resultsindicated that the surplus electricity was likely being put to aheat-generating use, and that the thermal energy thus gener-ated was consistent with the presence of a marijuana grow.

We think that this information sufficed to justify the searchof 199 Mowetza even without a firm connection betweenHuggins and the property. We therefore conclude that themagistrate judge did not clearly err in granting the secondwarrant.

B

The defendants maintain that even if the second affidavitwas on its face sufficient to support the magistrate judge’sprobable cause finding, the affidavit suffered from materialmisrepresentations or omissions that justify suppressing thefruits of the physical search under Franks.

12E.g., Ishmael, 48 F.3d at 857; Robertson, 39 F.3d at 894; Siegel, 679So. 2d at 1204; Garrettson, 967 P.2d at 431.

13Analogously, in Clark, although we deemed it insufficient to sustainthe finding of probable cause, we noted with approval the search warrantaffidavit’s attempt to “negate one innocent use [of large amounts of elec-tricity] — heating — by noting the alternative sources of heat at the resi-dence.” Clark, 31 F.3d at 835.


First, the defendants assert that the second affidavit misrep-resented what took place during the thermal imaging search.The affidavit stated that the scan showed excessive heat loss,consistent with the presence of a marijuana grow, on bothbarns, whereas Hauge testified at the Franks hearing that hehad observed such a heat signature “only on the one [barn].”However, the district court did not clearly err in finding thatthis error was not reckless or calculated to mislead; Hauge didreport observing some heat loss on the other barn.

Second, the defendants contend that the affidavit failed todisclose facts indicating that the thermal imaging search itselfwas fatally flawed. Relying on the expert testimony of CarlosGhigliotty, the president of a company that uses infraredinspection technology, the defendants assert that the cameramodel used was substandard, the specific camera used wasdefective, and the camera permitted manipulation by the oper-ator to allow for deceptive results. Specifically, Ghigliotty tes-tified that the camera model used cannot sense temperature,only relative temperature, and an operator can manipulate thegain or the contrast so as to make hotter objects look muchhotter and colder objects look much colder. Ghigliottyreviewed the videotape of Sgt. Hauge’s thermal imagingsearch of Mowetza Drive and concluded that “[i]n essence hefabricated the evidence to support his claim.”

The government presented expert testimony that partiallyrefuted the claims about the camera’s alleged limitations anddefects. Hauge also testified that he was not manipulating thecontrols during the taping, and that he had put the cameraonto an automatic setting that locked in the focus and gain.

The district court did not consider Ghigliotty credible.Indeed, he found Ghigliotty’s testimony “biased,” “totallyirresponsible,” and “useless to the Court.” Specifically, hepointed to Ghigliotty’s statement that “I’ve been doing thisfor about 10 years now, and I haven’t found one case that theyhaven’t fabricated the evidence in it, by that manipulating the


controls in the camera.” This statement, together with otherindications of bias and possible misrepresentation that thegovernment brought out on cross-examination,14 offers ade-quate support for the district court’s determination thatGhigliotty lacked credibility. Likewise, we cannot say that thedistrict court clearly erred in concluding that the thermalimager was sufficiently functional or that Hauge did notmanipulate the camera to produce a misleading result. Wethus conclude that the defendants have not shown that theaffidavit left out or distorted any material fact.

C

Because the second affidavit was sufficient to support afinding of probable cause, and because it neither omitted normisrepresented material facts, the district court properlydenied the motion to suppress the fruits of the physical searchof 199 Mowetza Drive.

IV

Having concluded that the evidence from the two searchesof 199 Mowetza Drive was admissible,15 we have less diffi-culty in upholding the derivative searches of the North Apple-gate Road and Highway 238 properties.

14For example, the government suggested on cross-examination (but didnot affirmatively demonstrate, see Fed. R. Evid. 608(b)) that Ghigliottymight have exaggerated his experience with infrared equipment in his dec-laration.

15In light of this conclusion, we need not decide whether Hagen or Jen-sen has standing to challenge the admissibility of that evidence, or whetherthe government waived that issue by failing to raise it in the district court.(Standing to challenge a search or seizure is a matter of substantive FourthAmendment law rather than of Article III jurisdiction, Rakas v. Illinois,439 U.S. 128, 139-40 (1978), meaning that the government can waive thestanding defense by not asserting it, United States v. Taketa, 923 F.2d 665,670 (9th Cir. 1991), and that we may assume standing when denying anunreasonable-search claim on the merits.)


A

Hagen strenuously challenges the search of his property ashaving been justified on a theory of “like mother, like son.”Although we agree that such a rationale would not by itselfsuffice to sustain a search, we disagree with the contentionthat that rationale was the only reason for searching the NorthApplegate Road property. Evidence recovered from MowetzaDrive directly supported the state judge’s conclusion thatprobable cause existed to search Hagen’s property; the affida-vit did not merely invite the judge to infer from Taylor’scriminal activity that Hagen was a participant. And the merefact of filiation did not immunize Hagen’s property fromsearch in the face of probable cause to believe that it wasbeing put to illicit use.

The most important evidence was the envelope labeled “re-ceipts 98 Applegate.” The receipts in the envelope reflectedthe purchase of a number of items that could be used in grow-ing or drying marijuana indoors. This evidence would, ofcourse, mean little for Fourth Amendment purposes standingalone. However, as the investigators had confirmed in thesearch of Mowetza Drive that Huggins and Taylor wereengaged in growing marijuana indoors, the presence of anenvelope full of receipts with a label indicating that theymight be growing marijuana elsewhere takes on a differentcast. Additionally, the search had turned up some dried mari-juana at the Mowetza Drive property, but no facilities for dry-ing the marijuana, which further supported the conclusion thatHuggins and Taylor might be maintaining other sites for culti-vation, drying, or both.

In light of the discovery of the envelope and the dried mari-juana, the documents detailing Taylor’s involvement in mak-ing mortgage payments and paying for water testing on theNorth Applegate Road property also bolster the finding ofprobable cause. Absent any other evidence, they might plausi-bly have been chalked up to a mother’s efforts to assist her


son financially;16 however, in conjunction with the knowledgethat the mother was engaged in growing marijuana, theyestablished that she had some personal involvement in anothernearby property where she might be engaging in similar activ-ity. (They also lent some specificity to the notation “Apple-gate” on the envelope.) Further, before obtaining the warrantto search Hagen’s property, the investigating officers investi-gated the property and verified that it was in fact entirelycompatible with the existence of marijuana cultivation or dry-ing operations, as it contained a 1500-square-foot metal out-building.

Further, we cannot discount the second informant’s tip.Although the affidavit presented no evidence in support of thesource’s credibility,17 the informant purported to have first-hand knowledge of illegal activity, and the evidence recov-ered at 199 Mowetza Drive directly supported that allegation.See United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9thCir. 1986) (“A citizen informant’s veracity may be estab-lished by the absence of an apparent motive to falsify andindependent police corroboration of the details provided bythe informant.”).

We conclude that the envelope of receipts, the mortgageand water testing payments by Taylor, and the informant’s tipare, in combination with Huggins and Taylor’s confirmedinvolvement in marijuana cultivation, enough to support thejudge’s finding of probable cause.18

16Of course, in light of the financial information recited in the secondsearch warrant application, this assistance would necessarily have to havecome from savings or nontaxable income.

17According to the affidavit, the source had turned over a marijuana leafostensibly from Hagen’s operation, but there is no indication that the leafitself gave any clue as to its provenance.

18We might be more skeptical if instead of presenting the aforemen-tioned evidence, the government had relied only on six mother-son phonecalls over a six-week period, or on the contractor’s bare assertion that


B

The propriety of the Highway 238 search turned almostentirely on the evidence that Huggins and Taylor were the les-sees of that property. Even before either of the MowetzaDrive searches took place, there was evidence to believe thatHuggins had been involved in marijuana cultivation; theuncertainty was over whether he was still so engaged and, ifso, where. The search of the Mowetza Drive property thatHuggins and Taylor jointly occupied revealed that Hugginswas definitely involved in marijuana cultivation and that Tay-lor was similarly involved. The discovery of dried marijuanabut no drying equipment at Mowetza Drive also suggestedthat Huggins and Taylor might have more than one base ofoperations. We think that the revelation that the pair had,within the previous two months, rented another nearby prop-erty afforded a reasonable basis to suspect that they hadexpanded their drug operations to the second property.19 See,e.g., Angulo-Lopez, 791 F.2d at 1399; United States v.Poland, 659 F.2d 884, 897 (9th Cir. 1981) (per curiam)(upholding a search of premises under suspects’ control,including “warehouse space leased by them,” based on “nor-mal inferences about where criminals would be likely to hideproperty . . . , taking into account the type of crime, the natureof the items, and the opportunity for concealment”).

“Whip’s parents” had been visiting Hagen’s property with “unusual” fre-quency (with nothing to establish what was “usual”). However, those factscertainly do not detract from the government’s other evidence, and theirinclusion in the affidavit does not undermine the existence of probablecause based on the other information.

19That the Highway 238 property turned out to be occupied by Taylor’ssister and niece does not affect the affidavit’s facial sufficiency. Seesources cited supra note 7. Although demonstrating that the affiant knewthat Huggins and Taylor did not occupy the property and intentionally orrecklessly omitted that fact from the affidavit might make out a validFranks claim, the defendants do not press such an argument on appeal,and we accordingly do not consider it.


Because these facts sufficed to justify the warrant, the affi-davit’s other averments about the Highway 238 property arelargely immaterial. Thus, we need not consider whether, asHuggins argues, the affidavit presented information about thejump in electricity usage once the service was put in Hug-gins’s name without also providing adequate comparativedata by which to evaluate that information. Whether or not thealleged spike in power consumption can itself bear any weightin the probable cause analysis, it does not detract from theconclusion to which the other evidence leads us.

V

For the foregoing reasons, we conclude that the districtcourt properly denied the motions to suppress the evidencefrom all four searches. Because the reasonableness of thesearches was the only issue that the defendants’ conditionalguilty pleas reserved, we affirm all four convictions.

AFFIRMED.

B. FLETCHER, Circuit Judge, special concurrence:

I specially concur in the majority opinion. I am in agree-ment that the good-faith exception applies in this case, butwrite separately because the majority errs in failing to makean explicit finding that no probable cause existed to issue thefirst warrant that authorized a thermal imaging search of theMowetza property.

In United States v. Leon, 468 U.S. 897, 900 (1984), theSupreme Court held that the Fourth Amendment’s exclusion-ary rule does not prevent the use of evidence “obtained byofficers acting in reasonable reliance on a search warrantissued by a detached and neutral magistrate but ultimatelyfound to be unsupported by probable cause.” Mindful of the


concern that the application by courts of this “good-faithexception” could “preclude review of the constitutionality ofthe search or seizure, deny needed guidance from the courts,or freeze Fourth Amendment law in its present state,” id. at924, the Court reasoned as follows:

There is no need for courts to adopt the inflexiblepractice of always deciding whether the officers’conduct manifested objective good faith before turn-ing to the question whether the Fourth Amendmenthas been violated . . . .

If the resolution of a particular Fourth Amendmentquestion is necessary to guide future action by lawenforcement officers and magistrates, nothing willprevent reviewing courts from deciding that questionbefore turning to the good-faith issue. Indeed, it fre-quently will be difficult to determine whether theofficers acted reasonably without resolving theFourth Amendment issue.

Id. at 925.

Following Leon, which allows reviewing courts “to exer-cise an informed discretion” in deciding whether to applyprobable cause analysis prior to reaching the question of goodfaith, we are left with the task of judging when the particularfacts of a case provide for an appropriate occasion to clarify,for both magistrates and law enforcement generally, thethreshold showing required to establish probable cause. Id. at925. Unlike the majority, I believe this is such an occasion.

The facts presented in the affidavit in support of the searchwarrant to conduct thermal imaging, and to collect discardedtrash from the property, did not provide the magistrate judgewith a “substantial basis for concluding that the affidavit insupport of the warrant established probable cause.” UnitedStates v. Wright, 215 F.3d 1020, 1025 (9th Cir. 2000). There


was not a scintilla of evidence of any current drug activityother than the electric bills. There had been no surveillance;there had been no tips or observations of buys or sells orgrowing. The only possible relevant current information wasthat the subject premises used more electricity than housesnext door and more than the prior usage at the premises.

The only allegations presented in support of the warrantapplication other than the electricity bills were a “tip” from anincarcerated informant, whose “reliability” was “untested,”that the defendant was once, at least three years previous,involved in producing and distributing marijuana, once had agirlfriend named “Rhonda,” and had lived in Eugene but mayhave moved to Ashland; information gathered by law enforce-ment that the defendant lived in Ashland (with the Mowetzaproperty listed as an address on a vehicle registration in hisname) and previously lived in Veneta (near Eugene); thatRhonda Taylor owned the Mowetza property, lived there, andused aliases; that a person with one of the aliases she used,with the same birthday as Rhonda Taylor, was arrested in1983 with marijuana (though apparently never prosecuted).

Nothing suggests current criminal activity. A statement byan untested informant that three years earlier the defendantwas involved in the drug trade carries almost no weight in theanalysis of probable cause to cause one to believe that currentcriminal activity is underway, not only because three yearshad passed since the informant learned such information, butbecause of the complete lack of specificity as to what thedefendant was doing and where he was doing it. Confirmationof the defendant’s whereabouts and his girlfriend’s identitycarries no weight whatsoever in the probable cause analysis.See United States v. Mendonsa, 989 F.2d 366, 369 (9th Cir.1993) (finding that confirmation of innocent information doesnot constitute “corroboration” for purposes of establishingprobable cause). Information that the defendant’s girlfriendwas arrested on drug charges more than 15 years earlier simi-larly can have no bearing on the probable cause analysis. The


information regarding electricity usage, admittedly the gov-ernment’s strongest evidence in support of the warrant appli-cation, cannot by itself sustain the government’s burden toestablish probable cause. United States v. Clark, 31 F.3d 831,835 (9th Cir. 1994) (“Even assuming . . . that [defendant’s]electrical consumption was ‘high,’ such consumption is con-sistent with numerous entirely legal activities. This evidence,which is equally consistent with both legal or illegal activity,. . . is simply not sufficient to establish probable cause . . .”).

Before proceeding to a good faith analysis, we shouldforthrightly face the issue of whether there was probablecause. I submit there was no probable cause.


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